Haresh Panchal Alias Harish Vallabhbhai Naroliwala v. Leela Chandrakant Naik

1) Revisionary jurisdiction of this Court under Section 115 of the Code of Civil Procedure, 1908 is invoked for setting up a challenge to the Decree dated 15 December 2008 passed by the learned Single Judge of the Small Causes Court R.A.E. and R. Suit No. 548/1331 of 1993. The Appellate Bench of the Small Causes Court has dismissed Appeal No. 37 of 2009 confirming the Decree of the Small Causes Court.

2) Plaintiff instituted R.A.E. and R. Suit No. 548/1331 of 1993 seeking recovery of possession of the suit premises on the grounds of default in payment of rent, unauthorised subletting, erecting permanent construction and nuisance/annoyance. The suit ___Page No.1 of 12___ was filed against Defendant No. 1, who is the original Tenant. The Applicant, who claims to be son of Defendant No. 1-Tenant, was impleaded as Defendant No. 2 in the suit with an allegation that the first Defendant-Tenant has unauthorizedly sublet the suit premises in favour of the Applicant/Defendant No.2. When the suit summons was served, Defendant No. 1 failed to appear in the suit nor participated in its decision. The suit was defended by Applicant/Defendant No.2 by filing written statement and by leading evidence. After considering the pleadings, documentary and oral evidence led by Plaintiff and Defendant No. 2, the Small Causes Court proceeded to decree the suit by accepting the grounds of arrears of rent, unauthorised subletting and erection of permanent construction. The ground of nuisance and annoyance, however, came to be rejected. Defendant No. 2 filed Appeal No. 37 of 2009 before the Appellate Bench of the Small Causes Court, which has been dismissed by Decree dated 31 August 2023.

3) I have heard Mr. Soni, the learned counsel appearing for Revision Applicant, who would submit that the demand notice dated 26 January 1993 was faulty as it sought to demand rent in respect of period when Plaintiff was not even a landlord. He would submit that the probate in favour of the Plaintiff came to be issued in August 1988 and that therefore demand of rent by the Plaintiff in respect of period prior to August 1988 was clearly illegal. That since the notice itself was not legal, the suit on the ground of arrears of rent was clearly not maintainable. He would submit that in any case, the second Defendant deposited the entire amount of rent by filing an application on 16 July 2005 i.e. immediately after framing of issues on 18 June 2005. Relying on judgment of this Court in Gulam Hussein Kalumia Vs. Mahomed Umar Azizulla[1], Mr. Soni would

___Page No.2 of 12___ contend that so long as the tenant deposits the arrears of rent before conclusion of trial, the decree under Section 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act) cannot be passed. He would further submit that the findings recorded by both the Courts would indicate that the rent has been deposited by Defendant No. 2 till 2020. He would therefore submit that the ground of arrears of rent has erroneously been accepted by the Small Causes Court and its Appellate Bench.

4) So far as the ground of unauthorised subletting is concerned, Mr. Soni would submit that there can be no subletting in the present case since second Defendant is the son of the first Defendant. He would submit that the first Defendant had not migrated to USA and the evidence on record clearly indicates that she was returning to India from time to time. He would seek to the place reliance of some of the medical bills to demonstrate treatment availed by the first Respondent near the suit premises. He would also submit that the first Defendant has ultimately passed away in the year 2014 and the death certificate indicates her address as suit premises.

5) So far as the ground of illegal construction is concerned, Mr. Soni would submit that the evidence on record indicates that the construction is not only of minor nature of a Otla and the additional door in the Varandah, but both the works were carried out with due permission of the landlord. Mr. Soni would therefore, submit that the decrees passed by the Trial Court as confirmed by the Appellate Court suffers from the vice of perversity, thereby warranting interference by this Court in its revisional jurisdiction. ___Page No.3 of 12___ 6) The Revision Application is opposed by Mr. Walawalkar the learned counsel appearing for Respondent/Original Plaintiff submitting that concurrent findings recorded by both the Courts below do not warrant any interference. He would submit that it is settled position of law that the expression 'first day of hearing of the suit appearing in Section 12(3) of the Bombay Rent Act is interpreted to mean the date of framing of issues in the suit and in support, he would rely upon the judgment of the Apex Court in Vasant Ganesh Damle Vs. Shrikant Trimbak Datar & Anr.[2] He would submit that the Defendants failed to make deposit of rent till framing of the issues. Inviting my attention to the findings recorded by the Appellate Bench, he would further demonstrate that the second Defendant was otherwise irregular in deposit of rent during pendency of the suit as well. So far as the ground of subletting is concerned, he would submit that the first Defendant has not appeared in the suit nor has filed her written statement or led evidence. That in absence of foundational pleadings by Defendant No. 1, Defendant No. 2 cannot be permitted to lead evidence about residence of the first Defendant in the suit premises. That it is conclusively proved that Defendant No. 1 had permanently migrated to USA, which is a reason why Defendant No. 2 deliberately withheld production of her passport. That the Trial Court has rightly drawn adverse inference against the Second Defendant in this regard. So far as the ground of unauthorised construction is concerned, he would submit that no written permission of the landlord is produced by the second Defendant. He would therefore submit that the decree does not suffer from any infirmity and would pray for dismissal of the Revision Application.

___Page No.4 of 12___ 7) Having considered the submissions canvassed by the learned counsel appearing for parties, it is seen that the eviction decree is passed on grounds of (i) default in payment of rent (ii) unauthorised subletting and (iii) erecting permanent structure in suit premises. Though Plaintiff/landlord had also raised the ground of nuisance and annoyance, the same is rejected.

8) The ground of default in payment of rent is sought to be defended on the ground of infirmity in the demand notice. Under Section 12(2) of the Bombay Rent Act, no suit for ejectment can be filed on the ground of arrears of rent unless the landlord serves on the tenant a notice demanding the same and period of 30 days has expired. I am unable to accept the submission of Mr. Soni that there is any infirmity in the Demand Notice dated 26 January 1993. It is sought to be contended on behalf of the Revision Applicant that Plaintiff became owner and landlord in respect of the suit premises only after she obtained probate in her favour in August 1988 and therefore could not have demanded rent in respect of period prior to August 1988. Firstly, Plaintiff’s entitlement to demand the rent from January 1987 is debatable. It is not that Plaintiff is an assignee in respect of the suit premises. She is a legal heir of original landlord and what was required was mere issuance of a probate for the purpose of legalizing her right of inheritance. Therefore, it cannot be contended, in the facts and circumstances of the present case, that Plaintiff did not have any right to demand rent prior to August 1988. Secondly, even if it is assumed that Plaintiff was not entitled to demand rent prior to August 1988, the demand for rent made by her during August 1988 till May 1990 is otherwise valid. It therefore cannot be contended that the entire notice is bad in law. The notice could have suffered from an infirmity if the demand was in respect of ___Page No.5 of 12___ period prior to creation of tenancy, where the tenant did not have any obligation to pay rent. In Gloria Lois Castro Vs. Piloo Fali Bomanji[3] this Court held the demand notice to be bad in law, where the demand was in respect of period prior to creation of tenancy. However, in the present case, it is not under dispute that the Defendant was liable to pay and had not paid rent from January

1987. As a legal heir of the original landlord, Plaintiff was entitled to recover rent from Defendant No. 1 from January 1987. By raising the objection to the demand notice, Defendant-tenants desire to raise dispute about who should be entitled to receive the rent. The object behind enacting Section 12(2) of the Bombay Rent Act is to ensure that the Defendant is given a chance to pay the arrears of rent before filing of suit for ejectment. So long as liability to pay rent is not disputed by the tenant, who should receive the rent is not really the tenant’s lookout. Therefore, the notice cannot be termed as invalid.

9) It is an admitted position that Defendants have failed to pay rent after receipt of the demand notice. The First Defendant- Tenant shied away from appearing in the suit and the suit was ultimately defended by the second Defendant. Even after putting an appearance in the suit, the second Defendant failed to deposit the amount of arrears of rent and interest till the first date of hearing of the suit. The suit was filed in the year 1993 and the issues came to be framed 12 years later on 18 June 2005. There can be no dispute to the position of law, which appears to be fairly well settled by now that the ‘first date of hearing’ within the meaning of Section 12(3) of the Bombay Rent Act is date of framing of issues. Reference in this regard can be made to the Apex Court judgment in Vasant Ganesh Damle (supra). Therefore, before 18 June 2005, the Defendants ought to have deposited the arrears of rent in order to save decree of CRA No. 327 of 2024 decided on 26 August 2024 ___Page No.6 of 12___ eviction being passed. However, it is only after the issues were framed on 18 June 2005 that the second Defendant thought of making an application on 16 July 2005 for deposit of arrears of rent and ultimately made the deposit on 9 October 2006. Again, while making the said deposit, he failed to deposit the amount of interest, which again is sine qua non for saving decree of ejectment under Section 12(3) of the Bombay Rent Act.

10) Mr. Soni has relied upon judgment of Single Judge of this Court (M. C. Chagla C.J.) in Gulam Hussein Kalumia (supra) in support of his contention that decree for eviction cannot be passed once it is proved that the tenant has deposited the rent before the trial concludes. It appears that similar view was taken by Chief Justice Chagla in Kailas Bhavan Bhagwandas[4]. However the said view appears to have been adversely commented upon by the Apex Court in Ganpat Laddha Vs. Sashikant Vishnu Shinde[5] holding that what Chief Justice Chagla did in Kalidas Bhavan was nothing less than legislating by converting the provisions of Section 12(3)(b) into a sort of discretionary jurisdiction of the Court to relieve tenants from hardship. In Ganpat Laddha, the Apex Court has held that the Courts cannot, by exercising judicial valour, extend the period specified under Section 12(3) using its discretion. The Apex Court had held in Para 11 as under:

___Page No.7 of 12___ obligation to pay rent to the landlord despite opportunities given by law in that behalf. Thus Section 12(3)(a) of the Act makes it obligatory for the Court to pass a decree when its conditions are satisfied as was pointed out by one of us (Bhagwati, J.) in Ratilal Balabhai Nazar v. Ranchhodbhai Shankerbhai Patel [AIR 1968 Guj 172: (1968) 9 Guj LR 48]. If there is statutory default or neglect on the part of the tenant, whatever may be its cause, the landlord acquires a right under Section 12(3)(a) to get a decree for eviction. But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12(3)(b) and defeat the landlord's claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to see how by any judicial valour discretion exercisable in favour, of the tenant can be found in Section 12(3)(b) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation. We think that Chagla, C.J., was doing nothing less than legislating in Kalidas Bhavan case in converting the provisions of Section 12(3)(b) into a sort of discretionary jurisdiction of the Court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear. Section 12(3)(b) does not create any discretionary jurisdiction in the Court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of courts." (emphasis added) In my view, therefore, it was necessary for the Defendants to deposit the arrears of rent before the date of framing of issues to save eviction decree.

11) To make the case worse for Defendants, it was found that Defendant No. 2 was irregular in deposit of rent during pendency of the suit. He did not deposit the rent during July 2009 to April 2011 and made the deposit in respect of the said period only in April 2011. Again, there was default on the part of Defendant No. 2 in respect of the period from April 2020 to January 2021. In my view therefore, the ground of default has rightly been accepted by the Small Causes ___Page No.8 of 12___ Court and its Appellate Bench and the findings recorded by the Courts below do not warrant any interference.

12) So far as the ground of unauthorised subletting is concerned, perusal of the written statement filed by the second Defendant would indicate that he did not raise any pleading to the effect that Defendant No. 1 was also residing in the suit premises. As observed above Defendant No. 1 herself did not appear in the suit nor filed her written statement. If indeed Defendant No. 1 was returning to India from time to time and residing in the suit premises, nothing prevented her from filing written statement and taking up the said plea during long pendency of the suit from 1993 to 2008. However, no efforts were made by the first Defendant to appear in the suit at any point of time. Even Defendant No. 2 did not plead a case of intermittent residence of Defendant No. 1 in the suit premises, whenever she returned to India. In absence of foundational pleadings, the evidence adduced by Defendant No. 2 about return of Defendant No. 1 from time to time to India cannot be accepted. Even the said defence of Defendant No. 2 about Defendant No. 1 going to the USA for the first time in the 1996 appears to be unbelievable in view of the fact that the bailiff could not find Defendant No.1 at the suit premises when the suit summons were attempted to be served and the bailiff was informed about departure of Defendant No. 1 to USA. In my view therefore, Defendant No. 1 appears to have left the suit premises lock, stock and barrel with any intention of coming back. She herself did not file any written statement nor stepped into the witness box to claim her intermittent residence in the suit premises. ___Page No.9 of 12___ 13) Reliance by Mr. Soni on judgment of Single Judge of this Court in Vasant Mahadev Pandit & Anr. Vs. Zaibunnisa Abdul Sattar & Ors.[6] does not cut any ice. In Vasant Mahadev Pandit (supra) this Court did not accept the ground of subletting when the brothers and wives of deceased tenant were found occupying the suit premises in absence of the original Tenant, essentially on account of the fact that the tenant's mother continued residing in the suit premises both during and after the residence of the original Tenant. Reliance of Mr. Soni on the judgment of Single Judge of this Court in Babanrao Shankarrao Chavan Vs. Chandrashekhar also does not assist the case of the Revision Applicant in view of the fact that his mere relationship with the Defendant No. 1 would not be sufficient in the present case once it is found that Defendant No. 1 had shifted to USA for all practical purposes keeping only Defendant No. 2 in the suit premises. The exclusivity of possession of Defendant No. 2 appears to have been proved in the present case. In Babarjit Singh Hari Singh & Ors. Vs. Manorama Vishwanath Surve & Anr.[8] this Court has held as under: "27. When tenant is posted out of the city where tenanted premises are situated and is required to temporarily shift his residence outside the tenanted premises, it becomes incumbent on the tenant to prove that his main and permanent place of residence continues to be the tenanted premises and that he temporarily resides outside the city only owing to his transfer. Thus, it becomes incumbent for the Tenant to prove that he returns to his permanent residence in the tenanted premises, whenever he gets an opportunity to do so. Usually when an employee on transferable job is required to move out of city due to his posting, such employee resides either in service quarters or on licence basis at the place of his posting and keeps on visiting his permanent residence. Thus, he is permanently connected to the tenanted premises which is his real ‘home’, though he is forced to take temporary shelter outside the city due to transferable job. There are many ways in which a tenant can maintain his connection with the tenanted premises after his transfer outside the city. 2001 (3) Mh.L.J. 118.